09-000042PL Criminal Justice Standards And Training Commission vs. Allen P. Perry Status: Closed Recommended Order on Tuesday, September 1, 2009.

Summary: Respondent failed to maintain good moral character by knowingly and actually possessing controlled substances not pertaining to an active investigation ; therefore, revocation of his certificate is appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 09-0042PL

)

ALLEN P. PERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 8, 2009, in Ft. Myers, Florida, before Carolyn S.

Holifield, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Sharon Saxler, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

For Respondent: Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue is whether Respondent, Allen P. Perry, a law enforcement officer, committed the offenses set forth in the

Administrative Complaint, and, if so, what disciplinary action

should be taken.

PRELIMINARY STATEMENT

By Administrative Complaint issued November 3, 2008,

Petitioner, Criminal Justice Standards and Training Commission

("Commission"), alleged that Respondent, Allen P. Perry

("Respondent"), committed acts which violated Sections 836.05

and 837.021, Subsection 893.13(6)(a) and (b), or any lesser

included offenses, and 943.1395(7), Florida Statutes (2006) 1 ; and

Florida Administrative Code Rule 11B-27.0011(4)(a) and (b). The

Administrative Complaint further alleges that because of those

violations, Respondent failed to maintain the qualifications

established by Subsection 943.13(7), Florida Statutes (i.e.,

requirement that certified officers in the State of Florida have

good moral character).

The Administrative Complaint made the following factual

allegations as the basis for the charged violations:

(a) On or between January 1, 2007, and

February 17, 2007, Respondent did unlawfully

possess not more than 20 grams of cannabis;

(b) On or between January 1, 2007, and

February 17, 2007, Respondent did unlawfully

have, in his actual or constructive

possession, a controlled substance, to wit:

Cocaine;

(c) On or between January 1, 2007, and

February 17, 2007, did unlawfully have, in

his actual or constructive possession, a

controlled substance, to wit: Alprazolam

(Xanax);

(d) On or between January 1, 2007, and

February 17, 2007, Respondent, did

unlawfully and maliciously threaten to

accuse Anthony Lattarulo of a crime or

offense, to wit: possession of a controlled

substance and/or possession of controlled

substance paraphernalia, with the intent to

compel Anthony Lattarulo to do an act

against his will; and

(e) On or between February 17, 2007, and

March 16, 2007, Respondent did unlawfully,

in one or more official proceeding, to wit:

internal investigation interviews willfully

made two or more material statements under

oath which contradict each other.

Respondent timely filed an Election of Rights form

disputing the allegations set forth in the Administrative

Complaint. The case was referred to the Division of

Administrative Hearings on January 7, 2009, for assignment of an

Administrative Law Judge to conduct a formal hearing pursuant to

Subsection 120.57(1), Florida Statutes (2008). The formal

hearing was initially scheduled for March 3 and 4, 2009. Prior

to the hearing, Respondent's unopposed motion for continuance

was granted, and the hearing was re-scheduled for April 8 and 9,

2009.

In the Pre-Hearing Stipulation filed prior to the hearing,

the parties stipulated to certain facts which required no proof

at hearing.

At hearing, the Commission presented the testimony of two

witnesses, Deputy Kenneth A. Sherman and Sergeant Timothy

Fisher. The Commission's Exhibit 1 was offered and admitted

into evidence. Respondent testified on his own behalf and

presented the testimony of seven witnesses: (1) Sergeant Dennis

Sullivan; (2) Lieutenant James Dryzmala; (3) Detective Ryan

Lowe; (4) Detective Charles Warf; (5) Thomas Flyn; (6) Deputy

John Craven; and (7) Sergeant David Piasecki. Respondent's

Exhibits 1 through 3 were offered and received into evidence.

A Transcript of the proceeding was filed with the Division

of Administrative Hearings on May 4, 2009. Both parties timely

filed Proposed Recommended Orders which have been considered in

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was certified

by the Commission as a law enforcement officer, having been

first certified in August 1999. The Commission issued to

Respondent, Certificate No. 186964.

2. At all times relevant hereto, Respondent was employed

as a law enforcement officer by the Lee County Sheriff's Office

("Sheriff's Office").

Controlled Substances in Respondent's Patrol Car

3. On or between January 1, 2007, and February 17, 2007,

Respondent knowingly and actually possessed cocaine, less than

20 grams of cannabis and Alprazolam, all of which are controlled

substances under Florida law.

4. On or between January 1, 2007, and February 17, 2007,

Respondent kept the cocaine, less than 20 grams of cannabis, and

Alprazolam in a tackle box which was in the trunk of his

assigned patrol car. Also, in the tackle box were scales,

presumptive test kits, baggies, and a knife that had been issued

to Respondent by the Sheriff's Office.

5. During the time the cocaine, cannabis, and Alprazolam

were in the tackle box in the trunk of Respondent's assigned

patrol car, there was no active criminal investigation

pertaining to those items. Moreover, there was no other lawful

or bona fide reason for Respondent's having the controlled

substances in the tool box in his assigned patrol car.

Sheriff's Office Policy on Controlled Substances

6. At all times relevant to this proceeding, the Sheriff's

Office had a policy governing how law enforcement officers

should handle the controlled substances that they confiscated or

took into custody during the course of performing investigations

or other job responsibilities.

7. Pursuant to that policy, law enforcement officers were

required to label and package the controlled substances that

they confiscated or took into custody in the performance of

their duties. On the label, the officers were to note the date,

time, place, from whom, and the circumstances under which the

controlled substances were confiscated. Furthermore, the

officers were to indicate on the label the case number related

to the specific controlled substances and whether the controlled

substances were to be destroyed or preserved as physical

evidence. Finally, the policy required that the law enforcement

officers take any controlled substances they confiscated during

their shifts to the Sheriff Office's drug repository at the end

of their shifts.

8. Notwithstanding the Sheriff's Office policy, officers

sometimes did not comply fully with the policy. The most common

infraction involved instances when an officer's shift ended late

at night or very early in the morning and, his assigned work

location was not close to the drug repository. In those

instances, officers sometimes waited until later that day or the

following day to take the confiscated controlled substances to

the drug repository. This delay in an officer's taking the

controlled substances to the drug repository is a violation of

the policy. However, apparently because such delay is a

relatively short one, the Sheriff's Office takes no disciplinary

action against the officer in this situation.

9. Respondent was aware of the Sheriff's Office policy

concerning how controlled substances confiscated or taken into

custody by officers should be handled. Nevertheless, with

regard to the cocaine, cannabis, and Alprazolam which Respondent

confiscated, he did not comply with that policy.

10. Respondent did not label the cocaine, cannabis, and

Alprazolam that were in the tackle box in the trunk of his

assigned patrol car. Moreover, Respondent never took those

controlled substances to the Sheriff Office's drug repository,

but kept them in the trunk of his patrol car for about two

months. In fact, the cocaine, cannabis, and Alprazolam remained

in the trunk of Respondent's patrol car until an officer with

internal affairs found them there during an investigation.

11. Respondent testified that he confiscated the cocaine,

cannabis, and Alprazolam during traffic stops he made while

performing his duties with the Sheriff's Office. However,

because the above-referenced controlled substances were not

labeled or otherwise marked, the date and circumstances

regarding how they came into Respondent's custody cannot be

accurately determined.

Respondent's Field Training Practice

12. At all times relevant hereto, Respondent was assigned

to the Sheriff's Office field training program as a field

training officer ("FTO"). As an FTO, Respondent supervised and

trained newly-hired recruits who were assigned to him for about

a month.

13. In February 2007, Respondent was assigned the task of

serving as FTO for Deputy Kenneth Sherman, a recruit with the

Sheriff's Office. During Phase Two field training, Deputy

Sherman was required to accompany Respondent as he (Respondent)

performed his normal patrol duties.

14. While serving as FTO for Deputy Sherman, Respondent

showed him the cocaine, cannabis, and Alprazolam in the tackle

box in the trunk of his patrol car. Respondent's reason for

doing so was that he thought Deputy Sherman should know what

various controlled substances looked like. At the time

Respondent showed Deputy Sherman the cocaine, cannabis, and

Alprazolam, he also explained to him how to test for various

drugs, narcotics, and/or controlled substances.

15. At or near the time Respondent showed Deputy Sherman

the controlled substances, he told Deputy Sherman that the

"policy" required that drug/narcotics and/or controlled

substances that had been confiscated and that were not needed as

evidence should be turned in to the drug repository for

destruction. However, Respondent stated that, notwithstanding

that policy, he kept the cocaine, cannabis, and Alprazolam for

training purposes.

16. Respondent believed that recruits should know what

narcotics and/or controlled substances looked like. Consistent

with that belief, Respondent showed drugs/narcotics and/or

controlled substances that were in the tackle box in his patrol

vehicle to some of the recruits he was training.

17. Respondent never sought or obtained authorization from

any official at the Sheriff's Office to keep and use confiscated

narcotics and/or controlled substances as training aids.

18. Showing recently confiscated drugs/narcotics and/or

controlled substances to a recruit or trainee may be lawful when

such display occurs during the course of an active investigation

or other official duties. However, to do so when there is no

investigation, and/or after a case is closed, is not a bona fide

lawful purpose.

19. Law enforcement officers are not authorized to be in

possession of controlled substances. The only time officers are

allowed to be in possession of controlled substances is when

they have been confiscated or taken then into custody during the

course of their law enforcement duties (i.e., an active

investigation pertaining to those controlled substances). In

such cases, the officers are responsible for complying with the

Sheriff Office policy discussed in paragraph 7.

February 2007 Incidents

20. On February 17, 2007, at about 2:00 a.m., Respondent

and Deputy Sherman were patrolling a high crime area in Bonita

Springs near an apartment complex. They observed a car or small

sports utility vehicle in the middle of the apartment complex

parking lot with several people standing around the vehicle.

After Respondent drove his patrol car into the parking lot,

almost everyone who had been standing near the vehicle scurried

away.

21. Because the vehicle in the middle of the parking lot

belonged to Anthony Lattarulo, he approached the patrol car to

explain the reason his vehicle was there. Mr. Lattarulo then

told Respondent and Deputy Sherman that he needed a "jump" for

his battery and/or that he needed gas for his Honda.

22. When Mr. Lattarulo approached the patrol car,

Respondent immediately began interrogating him. Meanwhile, at

some point during the interrogation, Deputy Sherman checked

Mr. Lattarulo's identification and also conducted a pat-down of

him. 2

23. During the interrogation, Respondent asked

Mr. Lattarulo where he was coming from, what he was doing there,

whether he did drugs, was he there to buy drugs, and when was

the last time he smoked crack. Mr. Lattarulo told Respondent

that he had been "hanging out" with a guy who lived in the

apartment complex; he then pointed to a unit in a nearby

building in the apartment complex, presumably the one in which

the person he had been visiting lived.

24. Mr. Lattarulo never told Respondent that he had been

using crack cocaine or any other illegal drug or purchasing such

drugs while visiting someone in the apartment complex.

Nonetheless, Respondent seemed to believe or suspect that

Mr. Lattarulo had not just been "hanging out," but had been at

the apartment complex using and/or purchasing illegal drugs. 3

25. After Mr. Lattarulo pointed to the apartment where he

had been visiting, Respondent told him to knock on the door of

that unit, and tell "those people" to come out because "Perry"

wanted to talk to them. Mr. Lattarulo told Respondent more than

once that he did not want to knock on the door and tell the

occupant(s) that the "police" wanted to talk them. Nonetheless,

he did so reluctantly after being threatened by Respondent.

After no one came to the door of the unit, Mr. Lattarulo

returned to the area where Respondent and Deputy Spencer were

and told Respondent that no one was in the unit.

26. Although no one answered the door of the unit when

Mr. Lattarulo knocked, Respondent seemed unconvinced that no one

was in the unit. Respondent then ordered Mr. Lattarulo to

return to the unit where he had already been and knock on the

door again. As he had done initially, Mr. Lattarulo told

Respondent that he did not want to knock on the door and tell

the occupants to come out. However, Mr. Lattarulo complied with

Respondent's demand after Respondent threatened him. Still no

one came to the door of the apartment unit.

27. Mr. Lattarulo knocked on the door of the unit as

described in paragraphs 25 and 26 only because of the threats

made by Respondent. It is unclear which threat Respondent made

first. However, in one instance, Respondent threatened to use

Mr. Lattarulo or Mr. Lattarulo's head as a battering ram to

"open that door." In the other instance, Respondent threatened

Mr. Lattarulo by telling him if he refused to go to the

apartment unit and knock on the door, "I'll go into my

pharmaceutical refrigerator [and], let you pick the drug you

want to go to jail for tonight."

28. After no one answered the door of the apartment unit

the second time, Mr. Lattarulo again returned to the area where

Respondent and Deputy Sherman were located. At or about that

time, Deputy Sherman apparently noticed a junction box on the

side of the apartment building. Not knowing what the "box" was,

Deputy Sherman asked Respondent. Respondent then instructed

Mr. Lattarulo to go pull the lever and "we'll see what it is."

29. As Mr. Lattarulo began walking toward the junction

box, Respondent told Deputy Sherman that when Mr. Lattarulo

pulled the lever of the junction box, the electrical power would

go off in that apartment building. As Respondent had indicated,

as soon as Mr. Lattarulo pulled the lever, the electricity went

off in the entire apartment building. After several seconds,

Respondent then ordered Mr. Lattarulo to turn the electricity

on. Mr. Lattarulo then pulled the lever, and the electricity in

the building came back on.

30. Following the incident involving the junction box,

Respondent and Deputy Sherman left the apartment complex.

Internal Investigation

31. Later on February 17, 2007, or the next day, Deputy

Sherman called an unidentified person with the Sheriff's Office

to share his concerns about the incident involving Mr. Lattarulo

and to seek advice. As a result of the conversation between

Deputy Sherman and the unidentified person, Sergeant Timothy

Fisher of the Sheriff Office's internal affairs division was

contacted and informed of the allegations made by

Deputy Sherman.

32. In response to the information given to Sergeant

Fisher, an internal investigation was immediately commenced. As

part of that investigation, Sergeant Fisher searched the trunk

of Respondent's assigned vehicle and discovered the cocaine,

less than 20 grams of cannabis, and Alprazolam in the tool box. 4

33. After the controlled substances were found in the

tackle box in the trunk of Respondent's patrol car, Sergeant

Fisher interviewed Respondent. During those interviews and/or

sworn statements, Respondent gave inconsistent statements

regarding why the controlled substances were in the trunk of his

patrol car. Respondent's stated reasons included the following:

(1) He used the controlled substances as an aid for training

recruits; (2) He forgot the controlled substances were in the

tackle box in the trunk of his assigned patrol car; and (3) He

was either too "lazy" or "stupid" to turn them in for

destruction.

34. Sergeant Fisher followed up on Respondent's

explanation that he failed to take the drugs to the repository

because he was lazy by reviewing files of the Sheriff's Office.

The credible testimony of Sergeant Fisher was that those records

documented that Respondent had gone to the Sheriff's Office drug

depository three times to deposit drugs and/or other evidence

after the date he reported confiscating the controlled

substances that were in his patrol car.

35. At this proceeding, Respondent also gave inconsistent

statements regarding the controlled substances in the tool box.

He testified that he used the above-referenced controlled

substances for training recruits. Nonetheless, he stated that

he intended to submit them for destruction, but had "no idea"

when he would do so. Also, despite testifying that he used the

controlled substances for training, Respondent testified that he

never moved or touched the controlled substances from the tackle

box or from the trunk of his patrol car. According to

Respondent's testimony, he, instead, required Deputy Sherman to

retrieve the test kit, scale, and controlled narcotics from the

toolbox.

36. Respondent was terminated as a deputy sheriff with the

Sheriff's Office.

Credibility of Witnesses

37. With regard to the February 17, 2007, incident

involving Mr. Lattarulo, Respondent testified that he never

threatened to plant drugs or controlled substances to place

charges on Mr. Lattarulo. Respondent also initially testified

that he never threatened to use Mr. Lattarulo as a battering

ram; however, on cross-examination, he acknowledged that he

"may" have threatened to use Mr. Lattarulo's head as a battering

ram.

38. The testimony of Deputy Sherman regarding the events

of February 17, 2007, including the threats made by Respondent

to Mr. Lattarulo is more credible than that of Respondent.

Moreover, Deputy Sherman's testimony is corroborated by the

credible sworn statement of Mr. Lattarulo given on February 27,

2007. 5

39. Respondent contends that Deputy Sherman made the

allegations concerning the threats, because he may have been

afraid that he was not going to pass the field-training phase.

Respondent further contends that Deputy Sherman's fear was based

on Respondent's documenting areas of concern (i.e., officer

safety skills and radio skills) which could have jeopardized

Deputy Sherman's passing the field-training phase. However,

there is nothing in the record which indicates that Deputy

Sherman had been notified or had reason to believe that he might

not pass his Phase Two training.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

41. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in the proceeding. Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). Here, the Commission is asserting the

affirmative. Therefore, it has the burden of proof.

42. Because this case is penal in nature, the material

allegations set forth in the Administrative Complaint must be

proven by clear and convincing evidence. Department of Banking

and Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932

(Fla. 1996); and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

43. Section 943.13, Florida Statutes, establishes the

minimum qualifications for law enforcement officers in Florida.

That section provides in pertinent part the following:

Officer's minimum qualifications for

employment or appointment.--On or after

October 1, 1984, any person employed or

appointed as a full-time, part-time, or

auxiliary law enforcement officer or

correctional officer. . . shall:

* * *

(7) Have good moral character as determined

by a background investigation under

procedures established by the commission.

44. Subsection 943.1395(7), Florida Statutes,

authorizes the Commission to take disciplinary action against

certified law enforcement officers who have not maintained good

moral character. That subsection provides:

(7) Upon a finding by the commission that

a certified officer has not maintained good

moral character, the definition of which has

been adopted by rule and is established as a

statewide standard, as required by

s.943.13(7), the commission may enter an

order imposing one or more of the following

penalties:

(a) Revocation of certification.

(b) Suspension of certification for a

period not to exceed 2 years.

(c) Placement on a probationary status

for a period not to exceed 2 years, subject

to terms and conditions imposed by the

commission. Upon the violation of such terms

and conditions, the commission may revoke

certification or impose additional penalties

as enumerated in this subsection.

(d) Successful completion by the officer

by the officer of any basic recruit,

advanced, or career development training or

such retraining deemed appropriate by the

commission.

(e) Issuance of a reprimand.

45. Pursuant to its rulemaking authority, the Commission

promulgated Florida Administrative Code Rule 11B-27.0011 (2006

version). See §§ 943.03(4) and 943.12(1), Fla. Stat. That rule

provides in pertinent part:

(4) For the purposes of the Criminal

Justice Standards and Training Commission’s

implementation of any of the penalties

specified in Section 943.1395(6) or (7),

F.S., a certified officer’s failure to

maintain good moral character required by

Section 943.13(7), F.S., is defined as:

(a) The perpetration by an officer of an

act that would constitute any felony

offense, whether criminally prosecuted or

not.

(b) The perpetration by an officer of an

act that would constitute any of the

following misdemeanor or criminal offenses

whether criminally prosecuted or not:

1. . . . 893.13, . . . F.S.

46. The Administrative Complaint alleges that Respondent

committed acts which constitute felony offenses under Sections

836.05, 837.021, and 893.13(6)(a), Florida Statutes, and an act

which constitutes a misdemeanor offense under Subsection

893.13(6), Florida Statutes, whether criminally prosecuted or

not.

47. Section 836.05, Florida Statutes, provides in

pertinent part:

Threats; extortion.--Whoever, either

verbally or by a written or printed

communication, maliciously threatens to

accuse another of any crime or offense, or

by such communication maliciously threatens

injury to the person . . . with the intent

to compel the person so threatened to . . .

to do any act or refrain from doing any act

against his or her will, shall be guilty of

a felony of the second degree, punishable as

provided in s. 775.082, s. 775.083, or

775.084.

48. Subsection 837.02(1), Florida Statutes, provides in

pertinent part:

Perjury by contradictory statements.

(1) Except as provided in subsection (2),

whoever, in one or more official

proceedings, willfully makes two or more

material statements under oath which

contradict each other, commits a felony of

the third degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084.

49. Subsection 893.13(6), Florida Statutes, provides in

pertinent part:

(6)(a) It is unlawful for any person to

be in actual or constructive possession of a

controlled substance unless such controlled

substance was lawfully obtained from a

practitioner or pursuant to a valid

prescription or order of a practitioner

while acting in the course of his or her

professional practice or to be in actual or

constructive possession of a controlled

substance except as otherwise authorized by

this chapter. Any person who violates this

provision commits a felony of the third

degree, punishable as provided in s.

775.082, s. 775.083, or s. 775.084.

(b) If the offense is the possession of

not more than 20 grams of cannabis, as

defined in this chapter, the person commits

a misdemeanor of the first degree,

punishable as provided in s. 775.082 or

s. 775.083. For the purposes of this

subsection, "cannabis" does not include the

resin extracted from the plants of the genus

Cannabis , or any compound manufacture, salt,

derivative, mixture, or preparation of such

resin. [Emphasis in original.]

50. Pursuant to Subsection 893.13(9), Florida Statutes,

the provisions of Subsection 893.13(6), Florida Statutes, are

inapplicable to persons in certain classes or the agents or

employees of such persons.

51. Subsection 893.13(9), Florida Statutes, provides in

pertinent part:

(9) The provisions of subsections (1)-(8)

are not applicable to the delivery to, or

actual or constructive possession for

medical or scientific use or purpose only of

controlled substances by, persons included

in any of the following classes, or the

agents or employees of such persons, for use

in the usual course of their business or

profession or in the performance of their

official duties:

* * *

(h) Law enforcement officers for bona fide

law enforcement purposes in the course of an

active criminal investigation.

52. The clear and convincing evidence established that

Respondent failed to maintain good moral character within the

meaning of Subsection 943.13(7), Florida Statutes, and Florida

Administrative Code Rule 11B-27.0011(4).

53. Here, the clear and convincing evidence established

that, while on duty as a law enforcement officer, Respondent

ordered Mr. Lattarulo to knock on the door of an apartment unit

and tell the occupants to come out and talk to Respondent.

Further, the clear and convincing evidence showed that when

Mr. Lattarulo indicated that he did not want to comply with

Respondent's order, Respondent told him that he (Respondent)

would: (1) have Mr. Lattarulo select a "drug" from the tackle

box ("pharmaceutical refrigerator") for which he wanted to go to

jail; and (2) use Mr. Lattarulo, or his head, as a battering ram

to open the door of the apartment unit.

54. By engaging in the foregoing conduct, Respondent

maliciously threatened to accuse Mr. Lattarulo of a crime or

offense and to injure Mr. Lattarulo. Moreover, Respondent made

the threats with the intent to compel Mr. Lattarulo to do

something (knock on the door and tell the occupants to come out)

against his will. The threats made by Respondent constitute

felony offenses within Section 836.05, Florida Statutes.

55. The evidence established that during the Sheriff

Office's investigation and interviews, Respondent made several

different statements regarding the reason the controlled

substances were in the trunk of his patrol car (i.e. he used

them to "train recruits" and he was "lazy" and "stupid").

Although Respondent's statements provided different

explanations, the statements are not clearly contradictory.

Moreover, no clear and convincing evidence was presented to

establish that Respondent's statements were made under oath

during "one or more official proceedings." Accordingly, the

evidence failed to show that Respondent committed an act that is

a felony offense under Subsection 837.021(1), Florida Statutes.

56. The parties stipulated that on or between January 1,

2007, and February 17, 2009, Respondent knowingly and actually

possessed less than 20 grams of cannabis, cocaine, and

Alprazolam. This stipulation is supported by clear and

convincing evidence that Respondent knowingly and actually

possessed the cannabis, cocaine and Alprazolam for about two

months.

57. Pursuant to Subsections 893.03(1)(c)7., 893.03(2)(a)4.

and 893.03(4)(a), Florida Statutes, cannabis, cocaine, and

Alprazolam, respectively, are controlled substances.

58. Respondent's possession of the controlled substances

is lawful, only if it falls within one of the exceptions

provided in Subsection 893.13(9), Florida Statutes. Relevant to

this case is Subsection 893.13(9)(h), Florida Statutes, which

allows law enforcement officers to be in possession of

controlled substances for bona fide law enforcement purposes in

the course of an active investigation.

59. The clear and convince evidence established that

during the approximately two months that Respondent was in

possession of the controlled substances, he was not involved in

any bona fide law enforcement purpose in the course of any

investigation. Thus, in accordance with Subsection

893.13(6)(a), Florida Statutes, Respondent was unlawfully in

actual or constructive possession of the controlled substances.

60. By unlawfully being in actual or constructive

possession of cocaine and Alprazolam, Respondent committed an

act that would constitute a felony of the third degree, whether

prosecuted or not. See § 893.13(6)(a), Fla. Stat.

61. By unlawfully being in actual or constructive

possession of less than 20 grams of cannabis, Respondent

committed an act that would constitute a misdemeanor of the

first degree, under Subsection 893.13(6)(b), Florida Statutes,

whether prosecuted or not.

62. In summary, the clear and convincing evidence

established that Respondent committed acts which constituted

felonies under Section 836.05 and Subsection 893.13(6)(a),

Florida Statutes, and a misdemeanor under Subsection

893.13(6)(b), Florida Statutes.

63. The Commission met its burden. It has shown by clear

and convincing evidence that Respondent failed to maintain good

moral character as required by Subsection 943.13(7), Florida

Statutes.

64. The Commission proposes to revoke Respondent's law

enforcement certification for the offenses he committed. That

penalty is within the disciplinary guidelines set forth in

Subsection 943.1395(7), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, Criminal Justice Standards and

Training Commission, enter a final order finding that

Respondent, Allen P. Perry, failed to maintain good moral

character as defined by the Commission and revoking his

correctional certificate.

DONE AND ENTERED this 1st day of September, 2009, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September, 2009.

ENDNOTES

1/ All statutory references are to Florida Statutes (2006),

unless otherwise noted.

2/ Using the identification provided to him, Deputy Sherman ran

a check on Mr. Lattarulo; however, based on that check, there

was no indication that there were any outstanding criminal

matters pending against him. Also, there is no indication that

any illegal drugs were found on Mr. Lattarulo during the

pat-down.

3/ While interrogating Mr. Lattarulo, Respondent told him to

open his mouth. Respondent then used a flashlight to look down

Mr. Lattarulo's throat. Respondent had previously told Deputy

Sherman that if a person had recently smoked crack, the "little

nodes" or glands in the back of that person's throat would be

"sticking up." Even though there was no evidence to support

this claim, it appears that Respondent used the flashlight to

look down Mr. Lattarulo's throat to determine if he had recently

used crack cocaine.

4/ The nature and amount of the narcotics found in the tackle

box are not in dispute.

5/ In this sworn statement, Mr. Lattarulo recanted denials made

during an interview on February 19, 2007, in which he was not

under oath. According to the typed record of the interview, the

session lasted only seven minutes and consisted of mostly

leading questions.

COPIES FURNISHED :

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Kenneth J. Afienko, Esquire

Kenneth J. Afienko, P.A.

560 First Avenue, North

St. Petersburg, Florida 33701

Sharon Saxler, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.